Congratulations! You’re Going to be a Witness!

Whether you own or manage a business, or just manage a process or former employee that’s the focus of a lawsuit, you could be called to testify during litigation. For those in the business world the thought of testifying may cause you anxiety, but with enough preparation and guidance you could do very well. Or, you could ignore your attorney’s advice, show up unprepared and just wing it, it could be a very long and costly day.

If your company is involved in a civil lawsuit there are two times you may testify. After a lawsuit is filed part of the litigation process is discovery.

That’s the stage where the parties exchange information, data, documents, ask each other questions and normally have depositions.

These are sessions where witnesses and parties are asked questions by attorneys for both sides called depositions (or depos or deps). Answers are under oath and the testimony will be recorded.

If the case isn’t dismissed by the judge early in the process or settled you might also testify at a trial.

Litigation is like a play. It has characters, a plot, heroes, villains and a final resolution. Your role in the play may be minor or major. There may be unexpected plot twists. Keys to a good performance are knowing the material, being relaxed, focused and good direction. Your attorney will be the director as much as possible.

I talk to my clients, go over with witnesses about what to expect and tell them the material the need to review and know as best they can before a depostion. I will tell them what areas the other attorney will probably explore, even the questions I think will be asked. I also will ask questions to allow you to tell you side of the story and fill any gaps that may have been previously missed.

Based on this advice and documents and information your business has, you need to put in time and energy to be prepared. This is like an oral exam. Don’t put in an all nighter the night before the deposition. Get as much sleep as you can before tesifying, keep up as much of your normal routine as possible and show up early, relaxed and prepared.

If you honestly don’t know the answer to a question, admit it. Don’t make stuff up. State you don’t recall the specific issue, but you might recall it if you could look at a document to refresh your memory. That’s when I come in, provide a document which hopefully jogs your memory and we can move on.

If you do know the answer, but don’t want to state it, don’t play dumb. You can ask for a short break to discuss it with me to come up with a way to best state what you know, but unless there’s a valid reason to object to a question you’ll have to answer. Often what’s bigger than the alleged crime is the attempt at a cover up. You don’t want to go there.

Don’t be overly friendly with opposing counsel but there’s no need to be uncivil. Act and speak professionally. Don’t vent your feeling about how awful the lawsuit is or the fact you think the plaintiff stabbed you in the back. If you don’t like the question, unless there’s a reason I can object to it, answer it as best you can. Don’t editorialize about how unfair or beyond the point you think the question may be.

Explain as best you can while simply answering the question. If the answer is A,B and C don’t respond with A,B,C, J,K and R. It just slows down the process and you may unwittingly admit something damaging. If your job is to play third base, don’t wander around left field.

Discovery, depositions and testimony are all opportunities to tell your side of the story. You shouldn’t expect something shocking to be revealed while the other party’s being deposed, giving you the win. But you should expect that without being prepared, calm, believable and following my advice, you could blow it and hand over to the opposing party material that may come back to haunt you.

If you have any questions about the litigation process or a legal issue that may end up in litigation, contact our office so we can talk about your situation, answer your questions and discuss how we can help.